Judge James L. Crandall, Case 20-01166729 2022-08-25 Tentative Ruling

Judge: James L. Crandall, Case: 20-01166729, Date: 2022-08-25 Tentative Ruling

Motion for Summary Judgment and/or Adjudication:

Defendants’ (Merritt McKeon and Eric Turkel) Motion for Summary Judgment/Adjudication, filed 5-18-22, is GRANTED.

Request for Judicial Notice (ROA 782):

Ex. 1. Complaint filed June 2, 2017 – ROA #2;

Ex. 2. Attached to Declaration of Christopher W. Bayuk.

Ex. 3. First Amended Complaint filed October 25, 2019 – ROA #167.

Ex. 4. Second Amended Complaint filed December 17, 2019 – ROA #191.

Ex. 5. July 6, 2016, Substitution of Attorneys in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 6. Second District Court of Appeal, Division 6, State of California, Case Docket (Register of Actions) for Case #: B270906 in re Thomas v Thomas.

Ex. 7. Fourth District Court of Appeal, Division 3, State of California, Case Docket (Register of Actions) for Case #: G053595 in re Thomas v Thomas.

Ex. 8. April 6, 2016, Minute Order – D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 9. May 26, 2016, Findings and Order After Hearing - D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 10. June 7, 2016, Ex Parte Request for Orders to Los Angeles County District Attorney, Per Family Code §§3130-3134.5: Declaration of James F. Bacin in Support Thereof filed in D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 11. June 7, 2016, Initial Order to Los Angeles County District Attorney, Per Family Code §§3130-3134.5. Issued in D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 12. June 7, 2016, Substitution of Attorneys in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 13. June 7, 2016, Domestic Violence Restraining Order filed on behalf of Petitioner Denise Thomas in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 14. June 13, 2016, Responsive Declaration to Request for Order filed on behalf of Petitioner Denise Thomas in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 15. May 24, 2016, Request for Order Modification Child Custody, Child Support Visitation filed on behalf of Respondent Gary E. Thomas II in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 16. June 15, 2016, Minute Order (Order of the Court) Ordered by Judge Donald F. Gaffney in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 17. July 6, 2016, Substitution of Attorneys in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 18. August 28, 2018, First Amended Complaint filed in the matter generally styled: Denise Thomas v Estate of David C. Stone, Law Office of David C. Stone, APC, Andre John Ausseresses, DOES 1 – 500.

Ex. 19. October 28, 2016, Hearing Transcript. Los Angeles County Superior Court Case #: PD062850/PQ018431, IRMO Denise Thomas v Gary Thomas.

Ex. 20. October 28, 2016, Minute Order of Judge Shirley K. Watkins. Los Angeles County Superior Court Case #: PD062850, IRMO Denise Thomas v Gary Thomas.

Ex. 21. October 28, 2016, Stipulation and Order. Los Angeles County Superior Court Case #: PD062850, IRMO Denise Thomas v Gary Thomas.

Ex. 22. July 25, 2017, Opinion: Thomas v Thomas (In re Marriage of Thomas) Court of Appeal, Second Appellate District, Division Six. No. B270906. Unpublished.

Ex. 23. November 14, 2018, Opinion: Thomas v Thomas (In re Thomas) Court of Appeal, Fourth Appellate District, Division Three. No. G053595. Unpublished.

Ex. 24. May 23, 2016, Notice of Appeal in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 25. December 22, 2015, Petition for Dissolution, in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 26. February 1, 2015, Petition for Domestic Violence Restraining Order, in the matter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067.

Ex. 27. June 11, 2021 – Verified Cross-Complaint for Indemnity, Contribution and Declaratory Relief. [ROA #: 405] Ex. 28. June 15, 2016, Hearing Transcript IRMO Thomas. Orange County Superior Court Case #: 15D011067.

Ex. 29. June 21, 2017, Petition for Dissolution filed in Los Angeles County Superior Court, case number: PD062850.

The Court GRANTS Defendants’ Request for Judicial Notice based on Evidence Code § 452(a) and 452(d).

Legal Standard for Summary Judgment

Code of Civil Procedure section 437c, subdivision (p)(2) provides:

“A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.”

Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition to the motion.”

Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4^th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in original.) “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id., at pp. 854-855; Italics in Aguilar.)

Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4^th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)

Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757, provides, “The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. [Citation.] The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim ‘as a matter of law.’ [Citation.]”

The first step in analyzing any motion for summary judgment is to identify the elements of the challenged cause of action or defense in order to isolate those targeted by the motion. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757.)

The pleadings delimit the scope of the issues to be determined. The complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff's cause of action. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)

Lee v. Bank of Am., (1980) 27 Cal. App. 4th 197, 216 states “[O]n summary judgment the question is whether the undisputed facts establish that the moving party is entitled to prevail on the causes of action articulated by the complaint. If the facts will support causes of action not articulated by the complaint, it is incumbent on the pleader to make some request to amend so that the pleading is adequate. In the absence of such a request, the court is under no duty to inquire whether there are causes of action or defenses inherent in the facts but not articulated by the pleading. (See Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605, 611 [163 Cal.Rptr. 477], quoting Krupp v. Mullen, supra, 120 Cal.App.2d 53, 56-57.)”

The complaint “set[s] the boundaries of the issues to be resolved at summary judgment…the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.)

Procedural Deficiencies

A court has discretion to refuse to consider late-filed papers without a showing of good cause. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 623, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal. 4th 1019, 1031; see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission”].) If the court, in its discretion, refuses to consider a late-filed paper, the minutes or order must so indicate. (CRC 3.1300(d).)

Plaintiffs’ deadline to file an Opposition to this motion was 8-11-22.

Instead of filing a timely opposition, Plaintiffs filed numerous ex partes based on emergencies created by Plaintiffs. Plaintiffs mention in their Opposition filed 3 days before the hearing that they had technical issues on 8-11-22. But they have been filing numerous ex parte applications, so this does not seem believable. They also did not request the Word version of the Separate Statement until 6 p.m. the day the Opposition was due.

Further, during the ex parte hearing on 8-19-22, the Court gave plaintiffs another chance to file an Opposition by end of the day, but they did not do so until 8-22-22 at 11:59 p.m. If the Opposition was complete on 8-11-22 and they only had technical difficulties, filing on 8-19-22 should not have been an issue.

Also, Defendants would be prejudiced by the Court’s acceptance of the extremely late Opposition/Separate Statement/Declarations.

Based on the foregoing, the Court does not consider the late Opposition or filings in support of the Opposition. The Court does not rule on the Objections to Plaintiffs’ evidence because the Court did not consider this evidence. Objections properly presented in compliance with CRC 3.1352, but that are not ruled on, are preserved for appeal. (Code Civ. Proc. § 437c(q); see also Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532; Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 890.)

Plaintiffs’ Objections did not comply with California Rules of Court, rule 3.1354. Thus, they are overruled.

Even if the Court did consider the Opposition, the Memorandum of Points and Authorities only argues that the Court should order a continuance. Code Civ. Proc. § 437c(h) states: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

Roman v. BRE Properties, Inc., (2015) 237 Cal. App. 4th 1040, 1056 provides: “Although [Code Civ. Proc. § 437c(h)] authorizes the trial court to either continue the hearing on the summary judgment motion or deny the motion to permit the opposing party to obtain necessary discovery, it was the Romans' responsibility to request such an order and to demonstrate, either in their opposition papers or in a separate application filed no later than their opposition papers, that the missing discovery was required. (See Frazee v. Seely (2002) 95 Cal.App.4th 627, 633, 115 Cal.Rptr.2d 780 [party seeking continuance must show facts to be obtained are essential to opposing the motion and those facts could not have been presented with the opposition papers]; see also Lloyd Design Corp. v. Mercedes–Benz of North America, Inc. (1998) 66 Cal.App.4th 716, 726, 78 Cal.Rptr.2d 185 [“[b]y indicating that the court had ‘more than enough’ evidence before it to sustain a ruling in Lloyd's favor, Lloyd gave the trial court sufficient reason not to continue the motion for purposes of allowing further discovery”].) They did neither …”

“To be entitled to a continuance, the party opposing the motion for summary judgment must show that its proposed discovery would have led to facts essential to justify opposition.” (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326.)

Granadino v. Wells Fargo Bank, N.A., (2015) 236 Cal. App. 4th 411, 416 as modified (Apr. 29, 2015) (Granadino) states: “appellants' attorney submitted a supplemental declaration stating that Wells Fargo had delayed in producing discovery, the deposition of appellants' prior counsel had not been completed and the deposition of Wells Fargo employee Munoz had not been taken. But the declaration did not explain why appellants believed the facts they sought through the depositions actually existed, why these facts were essential to oppose the summary judgment motion, and why Munoz's deposition had not been taken in the two years since the complaint was filed. The declaration simply concluded that “additional information and testimony is still required in order to adequately respond to Defendant's Motion.” This is insufficient. “Code of Civil Procedure section 437c, subdivision (h) requires more than a simple recital that ‘facts essential to justify opposition may exist.’ The affidavit or declaration in support of the continuance request must detail the specific facts that would show the existence of controverting evidence.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715, [15 Cal.Rptr.3d 609].) ¶ Accordingly, the trial court did not err in denying appellants' third request for a continuance of the hearing on the summary judgment motion.”

Here, the Declaration of Ernest Calhoon states: “I have set forth largely in the separate statement opposition the specific item numbers which require further discovery, and so incorporate that filing herein by reference re: need to continue for discovery. … The outstanding discovery relates specifically to the “material facts” noted as needing discovery in the separate statement.” (¶ 3.) The “declaration of Calhoon does not explain why Plaintiffs believe the facts they sought through the discovery actually existed.” (Granadino, supra, 236 Cal. App. 4th at 416.)

Further, assuming the Separate Statement could satisfy this requirement, the Separate Statement fails to establish why Plaintiffs believe facts they sought through discovery actually existed.

Based on the foregoing, the Court would deny the continuance, even if it did consider the Opposition.

Further, even if the Court considered the Opposition, the Memorandum of Points and Authorities does not argue that there is a triable issue of material fact. California Rules of Court, rule 3.1113(b), states, “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (Quantum) (2011) 197 Cal.App.4th 927, 935, explains, “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide. On the record in this case, the trial court was justified in declining to look beyond that failure.” The court recognizes that California Rules of Court, rule 3.1113(b) applies to an opposing party’s memorandum as well.

Jones v. Superior Ct., (1994) 26 Cal. App. 4th 92, 99 (Jones) provides: “The problem is that none of these points were mentioned, let alone briefed, in the underlying writ petition. Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived. (In re Marriage of Laursen & Fogarty (1988) 197 Cal.App.3d 1082, 1084, fn. 1, 243 Cal.Rptr. 398; Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228, 220 Cal.Rptr. 712; see also Eisenberg, Horvitz & Wiener, Cal.Practice Guide: Civil Appeals and Writs (Rutter 1993) ch. 9.21, p. 9–5.)”

Plaintiffs’ Opposition fails to argue that there is a triable issue of material fact. Thus, the Opposition does cannot meet Plaintiff’s burden, even if it was considered by the Court.

Analysis

Defendants, Merritt McKeon and Eric Turkel seek an order granting summary judgment or adjudication against Plaintiffs Ernest Calhoon, Denise Thomas, and LGT (a minor) in Defendants’ favor, as to the First (Professional Negligence), Second, (Breach of the Covenant of Good Faith and Fair Dealing) Third (Breach of Fiduciary Duty), and Fourth (Breach of Contract) causes of action.

1. Issues Nos. 1-4: Defendants Argue that the First through Fourth Causes of Action Brought by Plaintiff Calhoon are Barred by the Statute of Limitations

Code Civ. Proc. § 340.6 (a) provides: “An action against an attorney for a wrongful act or omission, other than actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” (Emphasis supplied.)

The Court of Appeal in Stoll v. Superior Court (1992) 9 Cal. App. 4th 1362 (Stoll) reiterated that this statute of limitations applies to all causes of action brought by clients against attorneys other than fraud. Stoll provides: “The Legislature intended to enact a comprehensive, more restrictive statute of limitations for practicing attorneys facing malpractice claims. The limitation of one year was designed to counteract the potential of lengthy periods of potential liability wrought by the adoption of the discovery rule, and thereby reduce the costs of malpractice insurance. The only limitation of the one-year period was for actual fraud.” (Id. at p. 1368.)

Accordingly, all of the causes of action brought by Plaintiffs have a one-year statute of limitations.

Plaintiffs alleges that the dates of injury occurred before or in June 2016. (Second Amended Complaint, ¶¶ 8, 10, 11, 12, 13, 15, 16, 17, 18, and 19.) Based on Code Civ. Proc. § 340.6(a), the statute of limitation expired for any claim regarding any alleged wrongful act or omission of Defendants in June 2017.

Denise Thomas filed the initial Complaint as a pro per on 6-2-17. While Thomas stated that LGT and Ernest Calhoon were Plaintiffs, she could not file on behalf of others because she is not an attorney. This is the unauthorized practice of law. Bus. & Prof. Code § 6125 provides: “No person shall practice law in California unless the person is an active licensee of the State Bar.”

Ziegler v. Nickel, (1998) 64 Cal. App. 4th 545, 547–48 states: “Section 6125 states, ‘No person shall practice law in California unless the person is an active member of the State Bar.’ Under the statute, one who is not a licensed attorney cannot appear in court for another person. (Russell v. Dopp (1995) 36 Cal.App.4th 765, 774, 42 Cal.Rptr.2d 768Pickett v. Municipal Court (1967) 249 Cal.App.2d 844, 846, 58 Cal.Rptr. 24.) Thus, one holding a special power of attorney cannot act as an attorney for another by virtue of the power of attorney. (People ex rel. Dept. of Public Works v. Malone (1965) 232 Cal.App.2d 531, 537, 42 Cal.Rptr. 888.)”

Russell v. Dopp, (1995) 36 Cal. App. 4th 765, 775 provides: “The general American rule is that an unlicensed person cannot appear in court for another person, and that the resulting judgment is a nullity. (7 C.J.S., Attorney & Client, § 31, p. 869.) ¶ In Campbell v. Jewish Com. for P. Service (1954) 125 Cal.App.2d 771, 271 P.2d 185, Campbell sued for an alleged libel directed at his brother. Without discussing the issue, the court commented that Campbell was appealing on his own behalf, and not in a representative capacity: “Not being a lawyer, Campbell cannot appear as attorney for his brother.” (Id., at p. 772, 271 P.2d 185.) ¶ In People ex rel. Dept. of Public Works v. Malone (1965) 232 Cal.App.2d 531, 42 Cal.Rptr. 888, the court held that Carroll Malone, a person holding a special power of attorney could not act as an attorney for his brother, Paul Malone, in litigation. The court quoted the Campbell case and held that a power of attorney does not permit an agent to act as an attorney at law. (Id., at p. 536, 42 Cal.Rptr. 888.) Accordingly, Carroll Malone did not have any right to act for his brother Paul in litigation. (Id., at p. 537, 42 Cal.Rptr. 888.) The action of the Carroll Malone in stipulating to a condemnation judgment on behalf of both brothers was held a nullity: “What Carroll purported to do for Paul in place of an attorney was a nullity, and that fact should have been known to the court and to opposing counsel.” (Id., at p. 537, 42 Cal.Rptr. 888.) Accordingly, the judgment was reversed.”

Here, there was no judgment obtained by Thomas. She simply filed the Complaint. This is undoubtedly the unauthorized practice of law, and a fraud on the court. (Russell v. Dopp, (1995) 36 Cal. App. 4th 765, 777.)

However, Defendants do not cite to any legal authority that states that an unlicensed person improperly filing a complaint on behalf of another does not preserve filing date for the purpose of the statute of limitations. Further, the Court is not aware of any authority that supports this position.

Accordingly, Defendants have not met their initial burden as to these Issues.

Based on the foregoing, the Court DENIES the Motion for Summary Adjudication as to the First through Fourth Issues.

2. Issue No. 5: Defendants argue that Plaintiffs’ Second Amended Complaint Fails as They Cannot Show Defendants Were the Sole Cause of any Damages and/or Injuries Suffered

Legal Malpractice: The elements of a cause of action for legal malpractice are: (1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

Viner v. Sweet, (2003) 30 Cal. 4th 1232 (Viner ) is the leading California Supreme Court case on causation in attorney malpractices cases. Viner provides: “[J]ust as in litigation malpractice actions, a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result.” (Id. at p. 1244; Emphasis in original.)

Yanez v. Plummer, (2013) 221 Cal. App. 4th 180, 186–87 provides: “In a legal malpractice action where, as here, there is a combination of causes, none of which is sufficient without the others to have caused the harm, the test for causation is the “but for” test: but for the defendant's conduct, the harm would not have occurred. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–1241 & fn. 3, 135 Cal.Rptr.2d 629, 70 P.3d 1046 (Viner ); see Vapnek, supra, ¶ 6:310, p. 6.60.14, ¶ 6:319, pp. 6–60.23 to 6–60.24 (rev.# 1, 2013).) ¶ Because the “substantial factor” test of causation subsumes the “but for” test, the “but for” test has been phrased in terms of “substantial factor,” as follows, in the context, as here, of a combination of causes dependent on one another: A defendant's negligent conduct may combine with another factor to cause harm; if a defendant's negligence was a substantial factor in causing the plaintiff's harm, then the defendant is responsible for the harm; a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff's harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct. (See Viner, supra, 30 Cal.4th at pp. 1239–1241, 135 Cal.Rptr.2d 629, 70 P.3d 1046; Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1095, 44 Cal.Rptr.3d 14 (Mayes ); 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1185, pp. 552–553; CACI No. 430; Directions for Use for CACI No. 430 (2013) p. 282; CACI No. 431.) ¶ In a legal malpractice action, causation is an issue of fact for the jury to decide except in those cases where reasonable minds cannot differ; in those cases, the trial court may decide the issue itself as a matter of law. (Ishmael v. Millington (1966) 241 Cal.App.2d 520, 525–526, 529, 50 Cal.Rptr. 592 (Ishmael ).)”

Breach of the Covenant of Good Faith and Fair Dealing: “The implied covenant of good faith and fair dealing rests upon the existence of some specific contractual obligation.” (Racine & Laramie, Ltd. v. Dep’t of Parks & Recreation (1992) 11 Cal. App. 4th 1026, 1031.) “The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purpose.” (Id.) “In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.” (Id. at 1031-1032.) “There is no obligation to deal fairly or in good faith absent an existing contract.” (Id. at 1032.)

Breach of Fiduciary Duty: “In order to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Pierce v. Lyman (1991) 1 Cal. App. 4th 1093, 1101.) “The absence of any one of these elements is fatal to the cause of action.” (Id.)

Breach of Contract: “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis W. Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.)

Here, Defendants have met their initial burden of establishing that Plaintiffs’ cannot establish the essential element of causation for all four of their claims, which arise from allegations of a breach of professional conduct.

Defendants establish the following regarding Orange County Family Law case IRMO Thomas, Case Number: 15D011067:

· Plaintiffs Second Amended Complaint against the defendants alleged defendants’ cost and/or diminished custody of LGT to Plaintiffs. (MF 61, RJN, Ex. 4: October 13, 2020, Second Amended Complaint: Denise Thomas v Merritt McKeon, et al. @ ¶ 6.)

· Between December 2015 and June 7, 2016, Ernest Calhoon was Plaintiff Denise Thomas’ attorney of record. (Material Fact (MF) 94, Request for Judicial Notice (RJN) Exs: 7, 8, 9, 12, 15, 23, 24, 25, 26.)

· McKeon was counsel of record for Denise Thomas between June 7, 2016 and July 6, 2016. (MF 95, RJN Exs: 12, 17.)

· While Ernest Calhoon was representing Thomas, on or about April 6, 2016, after hearing testimony and argument from both sides, Judge Gaffney, in Orange County Superior Court, made a finding the "Petitioner (Denise Thomas) has withheld the child from the Respondent for months." (MFs 21 and 22; RJN Ex. 8: April 6, 2016 Minute Order; Ex. 9: May 26, 2016, Findings and Order After Hearing.)

· Judge Gaffney after hearing testimony and argument Ordered: "Custody: The Court orders joint legal custody of the minor child to both parents. Respondent/Father shall have sole physical custody of the minor child.” The Court further ordered Mother (Denise Thomas) to take the child to the Santa Ana Police Department on April 7, 2016 at 10:00 a.m. (MFs 23 and 24, RJN Ex. 8: April 6, 2016 Minute Order; Ex. 9: May 26, 2016, Findings and Order After Hearing.)

· On and after April 7, 2016, Denise Thomas failed to comply with Court Orders, including custody and visitation, based upon instructions received from her then attorney, Ernest Calhoon. (MF 37, RJN, Ex. 14: June 13, 2016 Responsive Declaration of Request for Order @ 3.) (In exhibit 14 plaintiff Thomas blames plaintiff Calhoon for her violation of the court order.)

· On or about May 24, 2016, Gary Thomas, II, filed a Request for Modification of child custody, child visitation and child support with a hearing date of June 15, 2016. (MF 25, RJN Ex. 15: May 24, 2016, Request for Order.

· On or about June 7, 2016, the Los Angeles County District Attorney's Office filed an unnoticed ex parte application & declaration seeking an Order permitting the Los Angeles County District Attorneys' Child Abduction Unit to investigate and take all actions necessary to locate the Petitioner (Denise Thomas) and minor child herein to procure compliance with the custody order. (MF 27, RJN Ex. 10: June 7, 2016 Ex Parte Application; Declaration of Merritt McKeon ¶15.)

· On or about June 7, 2016, the Orange County Superior Court issued an initial Order to the Los Angeles County District Attorney, per Family Code §§ 3130-3134.5. (MF 28, RJN Ex. 11: Initial Order to Los Angeles County District Attorney)

· On or about June 7, 2016, Plaintiff by and through Merritt McKeon filed a Domestic Violence Restraining Order with the Orange County Superior Court. Request for Judicial Notice - Exhibit 13: June 7, 2016, Domestic Violence Restraining Order.

· Plaintiff, Denise Thomas testified Gary Thomas, II, had been arrested for domestic violence on May 4, 2016. (MF 33, RJN Ex. 13: June 7, 2016, Domestic Violence Restraining Order; Declaration of Denise Thomas @ 9.)

· Plaintiff further testified Gary Thomas, II, had taken pictures of her without her consent showing his penis on apparently her back. (MF 24, RJN Ex. 13: June 7, 2016, Domestic Violence Restraining Order; Declaration of Denise Thomas @ 9.)

· After learning of the Order issued by the Orange County Superior Court, McKeon arranged to have the child, LGT, turned over to the District Attorney’s Office of Los Angeles. (MF 35, Declaration of Merritt McKeon ¶ 15.)

· On or about June 13, 2016, Plaintiff filed a Responsive Declaration to the Request for Order on Modification filed by Gary Thomas, II. (MF 36, RJN Ex. 14: June 13, 2016 Responsive Declaration of Request for Order.)

· On June 15, 2016, the Orange County Superior Court per Judge Gaffney held a hearing in which Denise Thomas, Merritt McKeon and respondent Mr. Thomas were present. With the consent of Plaintiff and Ms. McKeon, the Court advanced the hearing date on the DVRO to June 15, 2016 and took the matter off-calendar. The Court awarded sole legal and physical custody of the minor child (LGT) to Respondent/Father. The Court further ordered Petitioner/Mother to have supervised parenting time with the minor child (LGT) 2 days every week for up to 2 hours each visit through FACES. (MFs 39-42, RJN, Ex. 16: June 15, 2016 Minute Order; Ex. 28 – June 15, 2016, hearing transcript)

Defendants establish the following regarding Court of Appeal Case #: G053595:

· On or about May 23, 2016, Plaintiff by and through Calhoon filed a notice of appeal – appealing the Orange County Court's Orders of March 28, March 29, April 6, and April 12, 2016. (MF 26, RJN Ex. 7 Register of Actions for Appeal #: G053595; Ex. 24: Notice of Appeal.)

· Plaintiff Calhoon represented Plaintiff in her appeal, Court of Appeal Case #: G053595 seeking reversal of several Orders issued by the Orange County Superior, Superior Court Judge Donald F. Gaffney. (MF 72, RJN, Ex. 22: Second Appellate District Opinion (Unpublished).

· On or about June 13, 2016, Merritt McKeon substituted in as counsel of record for Denise Thomas in place of Ernest Calhoon on the Appeal filed with the Fourth District Court of Appeal. (MF 81, RJN Ex. 7: Court of Appeal Docket Case G053595.)

· On July 21, 2016, Defendant McKeon Substituted out as counsel of record on the Appeal filed in the California Court of Appeal, Fourth Appellate District, Case #: G053595. (MF 82, RJN, Ex. 7: Court of Appeal Docket Case G053595.)

· On September 22, 2016, Ernest Calhoon substituted in as counsel of record in the California Court of Appeal, Fourth Appellate District, Case #: G053595. (MF 83, RJN, Ex. 7: Court of Appeal Docket Case G053595.

· On or about November 14, 2018, The Court of Appeal Fourth Appellate District, Division Three filed its opinion in G053595. (MF 84, RJN, Ex. 7: Docket Case G053595; Exhibit 23: Court of Appeal Opinion (unpublished).)

· The Fourth District Court of Appeal affirmed all orders issued by the Orange County Superior Court finding no errors on the record before them. (MF 85, RJN, Ex. 23: Court of Appeal Opinion (unpublished).)

The Court of Appeal described the disputes in Ex. 23 as follows: “At the conclusion of the testimony, the court gave an oral statement of decision. It found wife was not credible and, therefore, specifically rejected her testimony concerning the purported incidents of domestic violence. Because she did not meet her burden of proof in establishing grounds for issuing a DVRO, the court denied [*6] the request. Due to scheduling issues, the court took up the child custody and visitation issues roughly one week later. Wife testified she was willing to let husband have visitation with their then one-year-old daughter for three hours in the morning each day of the week while her other kids were in school. She stated she was breastfeeding and did not want visitation to interfere with it. Husband testified he obeyed the court's interim orders, but wife did not. He went to the designated exchange location each time he was supposed to have visitation, but wife never came. As for taking care of the child, husband indicated he had all things needed to take care of her (e.g., stroller, bed, car seat), and that there was room for her in the three bedroom house where he lived. He asked the court grant him sole legal and physical custody, but stated he would ensure wife would have visitation with their daughter three days per week, from mid-morning to the evening time. Following all testimony, the court announced its decision from the bench. It was bothered by the fact wife had consistently violated the temporary custody order and, for months, refused to allow husband to see their daughter. [*7] Consequently, it awarded joint legal custody, but sole physical custody to husband, with wife to have four-hour visitation periods three times per week. In addition, because of wife's utter disregard for the court's orders and misuse of the judicial system, it granted husband's request for approximately $14,000 in attorney fees.”

Defendants establish the following regarding Court of Appeal Case #: B270906:

· On or about March 17, 2016, Plaintiff Denise Thomas by and through Ernest Calhoon filed a Notice of Appeal with the Second Appellate District case #: B270906. (MF 74, RJN, Ex. 6: Court of Appeal Docket Case B270906.)

· On or about June 13, 2016, Merritt McKeon substituted in as counsel of record for Denise Thomas in Second Appellate District case #: B270906. (MF 75, RJN Ex. 6: Court of Appeal Docket Case B270906.)

· On June 28, 2016, Defendant McKeon Substituted out as counsel of record on the Appeal filed in the California Court of Appeal, Second Appellate District, Case #: B270906. (MF 76, RJN Ex. 6: Court of Appeal Docket Case B270906.)

· On or about September 29, 2016, Ernest Calhoon substituted in as counsel of record for Denise Thomas. (MF 77, RJN Ex. 6: Court of Appeal Docket Case B270906. Exhibit 22: Second Appellate District Opinion (Unpublished).)

· On July 25, 2017, the Second District Court of Appeal issued its decision in B270906, noting that Thomas by and through her counsel, Ernest Calhoon had acquiesced to the dissolving of the restraining orders prior to the transfer. (MF 78, RJN Ex. 22: Second Appellate District Opinion (Unpublished) @ 5, fn. 4.)

Further, Defendants establish the following regarding the Los Angeles Superior Court:

· On or about October 28, 2016, appeared in Los Angeles County Superior Court pursuant to a subpoena issued by Plaintiff. (MF 63, Declaration Merritt McKeon ¶25)

· During the course of the hearing, Ernest Calhoon withdrew as Plaintiff's counsel leaving her unrepresented for the hearing. (MF 65, RJN, Ex. 19: October 28, 2016 Hearing Transcript @ 19:7 -12; 21:8; Exhibit 20 - October 28, 2016, Minute Order.)

· After Mr. Calhoon withdrew and substituted off the case, the Court granted the motion to quash. (MF 66, RJN Ex. 19: October 28, 2016 Hearing Transcript @ 20:20-21:16; Exhibit 20: October 28, 2016, Minute Order.)

· Subsequent to Mr. Calhoon's withdrawal from the case, Plaintiff Denise Thomas agreed to take her Domestic violence restraining order off-calendar - dissolving the temporary restraining order. (MF 67, RJN Ex. 19: October 28, 2016 Hearing Transcript @ 26:23 - 29:4; Exhibit 20: October 28, 2016, Minute Order.)

· On October 28, 2016, the Court ordered that neither party may remove the children from Los Angeles or Ventura Counties. (MF 68, RJN Ex. 20: October 28, 2016, Minute Order.)

· Plaintiff/Petitioner entered into a Stipulation & Order signed by the Judge, stipulating that Ernest Calhoon was to have no contact with the minor child and each would have shared physical custody and joint legal custody. (MFs 69, 70, 71, RJN, Ex. 21: Stipulation and Order.

Lastly Defendants establish that at all times relevant hereto, Defendant Eric Turkel was married to Merritt McKeon (MF 55, Declaration of Eric Turkel ¶ 1) and Defendants did not cause any harm, injury, or damage to Plaintiff Thomas or LGT. (MF 57, Decl. Merritt McKeon ¶ 33; Declaration of Eric Turkel ¶ 4/5.)

Based on the foregoing, Defendants establish that there are no triable issues of material facts as to causation. Plaintiff Ernest Calhoon’s direction not to follow the Court’s order regarding custody/visitation and Denise Thomas’ failure to comply is what changed her custody order, not any action or omission of Defendants.

Further, if anything McKeon helped Plaintiff Thomas because the Court had lost all trust in Thomas. Lastly, months after Thomas lost custody in April 2016, she got joint legal and physical custody back on October 28, 2016.

Because Plaintiffs did not file a timely Opposition, they do not raise a triable issue of material fact. Thus, Plaintiffs have not met their burden. Furthermore, Plaintiffs did not submit a timely responsive separate statement. Failure to file a responsive separate statement is another sufficient ground, for the court’s granting of this motion. (Code Civ. Proc. §437c(b)(3).)

Based on the foregoing, the Court GRANTS the motion as to Issue 5. Because this issue disposes of all four causes of action in the Second Amended Complaint, the Court GRANTS summary judgment as to the Second Amended Complaint in favor of Defendants.

3. Issue 6: Defendants Argue that any Act or Omission of the Defendants Arising and/or Occurring on October 28, 2016 are Privileged Statements and/or Conduct, immunizing them from liability pursuant to California Civil Code section 47.

Based on the ruling on Issue 5, it is not necessary for the Court to analyze Issue 6.

Nevertheless, while the Court agrees that Defendant McKeon’s statements are immunized, sunch immunity does not completely dispose of a cause of action. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc. § 437c(f)(1); see also Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 (pleadings “set the boundaries of the issues to be resolved at summary judgment”).) Defendants’ motion for summary adjudication of Issue 5 would not dispose entirely of Plaintiff’s first and second causes of action and cannot be granted consistent with section 437c(f)(1).

Accordingly, the Court DENIES the Motion as to Issue 6.

4. Issue 7: Defendants Argue that Ernest Calhoon Owed a Non-Delegable Duty to Plaintiffs and is Liable to the Defendants

Defendants/Cross-Complainants filed a Cross-Complaint against Plaintiff/Cross-Defendant Ernest Calhoon for indemnity.

SeaBright Ins. Co. v. US Airways, Inc., (2011) 52 Cal. 4th 590, 600–01, cited by Defendants provide that Calhoon’s duty was non-delegable to Thomas and LGT: “The nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor. (See Eli v. Murphy (1952) 39 Cal.2d 598, 600, 248 P.2d 756; Knell v. Morris (1952) 39 Cal.2d 450, 456, 247 P.2d 352.) In Maloney v. Rath (1968) 69 Cal.2d 442, 71 Cal.Rptr. 897, 445 P.2d 513 (Maloney ), for example, this court held that car owners cannot delegate their duty to ensure that their cars have working brakes. Hence, an owner cannot avoid liability for an accident by arguing that the mechanic hired to inspect the brakes failed to discover the brake problem. (Id. at pp. 446–447, 71 Cal.Rptr. 897, 445 P.2d 513.)”

Channel Lumber Co. v. Porter Simon, (2000) 78 Cal. App. 4th 1222, 1229 provides: “although outside trial attorneys are independent contractors, they also “fall within the category of agents. They are fiduciaries; they owe to the principal the basic obligations of agency: loyalty and obedience.” (Rest.2d Agency (1958) § 14N, com. a, p. 80.) And, “[a]s a general proposition the attorney-client relationship, insofar as it concerns the authority of the attorney to bind his client by agreement or stipulation, is governed by the principles of agency.... Hence, 'the client as principal is bound by the acts of the attorney-agent within the scope of his actual authority (express or implied) or his apparent or ostensible authority; or by unauthorized acts ratified by the client.' ....” (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403 [212 Cal.Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109], citations omitted.)”

Prentice v. N. Am. Title Guar. Corp., Alameda Div., (1963) 59 Cal. 2d 618, 620–21 describes the tort of another doctrine: “General rule: In the absence of some special agreement, statutory provision, or exceptional circumstances, attorney's fees are to be paid by the party employing the attorney. (Code Civ. Proc., § 1021; Reid v. Valley Restaurants, Inc., 48 Cal.2d 606, 610 [5] [311 P.2d 473]; Estate of Reade, 31 Cal.2d 669, 671 [2] [191 P.2d 745]; Estate of Williamson, 150 Cal.App.2d 334, 341 [8] [310 P.2d 77].) ¶ Exception: A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred. (Stevens v. Chisholm, 179 Cal. 557, 564 [178 P. 128]; Nelson v. Kellogg, 162 Cal. 621, 623 [123 P. 1115, Ann.Cas. 1913D 759]; Contra Costa County Title Co. v. Waloff, 184 Cal.App.2d 59, 67 [9a] [7 Cal.Rptr. 358]; Rest., Torts (1939) § 914; 15 Am.Jur. (1938) Damages, § 144, p. 552; 25 C.J.S. (1941) Damages, § 50c, p. 534; cf. Estate of Williamson, supra, 150 Cal.App.2d 334, 341.) ¶ It is urged that this exception is not applicable in this case because of the provisions of section 1021 of the Code of Civil Procedure. That section provides: “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys ... is left to the agreement ... of the parties. ...”

This section undoubtedly prohibits the allowance of attorney fees against a defendant in an ordinary two-party lawsuit. (Reid v. Valley Restaurants, Inc., supra; American Aero. Corp. v. Grand Cen. Aircraft Co., 155 Cal.App.2d 69, 83 [9] [317 P.2d 694].) Section 1021 is merely a statement of the general rule. (See Rest., Torts (1939) § 914, com. c.) ¶ The section is not applicable to cases where a defendant has wrongfully made it necessary for a plaintiff to sue a third person. (Stevens v. Chisholm, supra; Nelson v. Kellogg, supra; Contra Costa County Title Co. v. Waloff, supra; Peebler v. Olds, 71 Cal.App.2d 382, 389 [8] [162 P.2d 953].) In this case we are not dealing with “the measure and mode of compensation of attorneys” but with damages wrongfully caused by defendant's improper actions.”

Defendants filed a cross-complaint seeking total indemnification and had tendered the defense to Calhoon pursuant to Code Civ. Proc. §1021.6. (MF 152 - Exhibit 27 @ ¶21; MF 153)

Code Civ. Proc. §1021.6 provides: “Upon motion, a court after reviewing the evidence in the principal case may award attorney's fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee's interest by bringing an action against or defending an action by a third person and (b) if that indemnitor was properly notified of the demand to bring the action or provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict.”

Here, based on the material facts already discussed herein, Defendants established that there is no triable issue of material fact as to whether they were at fault for any tort alleged.

Plaintiff/Cross-Defendant Calhoon was the tortfeasor. The Court filings, orders and appellate opinions all list him as the attorney of record.

Defendants have defended the action, despite the damages and professional blunders falling solely and squarely upon Calhoon, who had a non-delegable duty to the Plaintiffs as their counsel of record on the alleged dates of injuries. (MF 104 – 113; 116, 122, 123, 129, 136 – 138, 141-143, 146-148.)

Further, Plaintiffs have admitted Defendants were hired as independent contractors to assist Calhoon for which he paid Defendants. (MF 145/146). Calhoon was the individual responsible for losing custody. Calhoon’s actions and the results for them are neither transferable nor delegable.

Accordingly, the Court GRANTS the Motion as to Issue 7.

Based on the foregoing, Defendants’ (Merritt McKeon and Eric Turkel) Motion for Summary Judgment/Adjudication, filed 5-18-22, is GRANTED.

Defendants to give notice.

Defendants counsel to prepare the judgment.

Future Events:

9/1/22 – (13) Motions to Compel

9/26/22 – Jury Trial

12/22/22 - Motion for Reconsideration